High Court
Case Details
Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 55154 of 2021 Applicant :- Salman Alias Chotey Opposite Party :- State of U.P. Counsel for Applicant :- Mukesh Joshi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Mukesh Joshi, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Salman @ Chotey, seeking his enlargement on bail in Case crime No. 287 of 2021, under sections 366, 376D, 328, 323 IPC, Police Station- Kundarki, District Moradabad during the pendency of trial. Perused the record. Record shows that in respect of an incident which is alleged to have occurred on 30.6.2021, a belated F.I.R. dated 2.7.2021 was lodged by first informant Kallu Shah and was registered as Case crime No. 287 of 2021, under sections 366, 376D, 328, 323 IPC, Police Station- Kundarki, District Moradabad. In the aforesaid F.I.R., applicant Salman @ Chotey has been nominated as solitary named accused. According to the prosecution story as unfolded in F.I.R., it is alleged that on 30.6.2021, first informant lodged a missing person report. After some time he came to know that his daughter has been enticed away by Salman. After registration of aforesaid F.I.R, Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII C.P.C. The prosecutrix was recovered on 2.7.2021. Thereafter the statement of prosecutrix was recorded under section 161 Cr.P.C by the Investigating Officer. Same is on record as Annexure-3 to the affidavit. Perusal of aforesaid statement will go to show that prosecutrix herself accompanied the applicant on his motorcycle. The prosecutrix has however alleged that her modesty was dislodged by applicant. Subsequently the prosecutrix was medically examined. Her medico legal report is on record as Annexure-6 to the affidavit. No statement of prosecutrix was recorded before the Doctor. The Doctor who examined the prosecutrix did not find any mark of external injury, or signs of sexual assault. The recital contained at page 42 of the paper book may also taken notice of regarding the innocence and character of the prosecutrix. Certain samples were taken from the body of prosecutrix for pathological examination. The result was shown as negative. The suppementary Medico Legal Report of the prosecutrix is on record as Annexure-7 to the affidavit filed in support of the bail application. The age of the prosecutrix was determined to be 18 years. Ultimately, statement of prosecutrix was recorded under section 164 Cr.P.C. wherein she has supported her earlier statement under section 161 Cr.P.C. Prosecutrix has improved upon her statement. Ultimately, Investigating Officer has submitted charge sheet dated dated 13.8.2021, whereby applicant Salman and co-accused Mohd. Arbaj @ Mumtaz have been charge sheeted under section 366 IPC. At the very outset, learned counsel for applicant submits that co-accused Mohd. Arbaj @ Mumtaz Alam has already been enlarged on bail by this Court vide order dated 17.12.2021. Same is reproduced herein under: "Heard learned counsel for the applicant, Sri Sanjay Singh, learned AGA-I for the State and perused the record. The submission of learned counsel for the applicant is that the applicant has been falsely implicated in the present case due to ulterior motive. He is innocent and has no criminal antecedent. The contentions of learned counsel for the applicant are that the applicant is not named in first information report which is delayed by two days; victim is about 19 years old and named person Salman enticed the victim away with him whereas the applicant has no concern with the offence as alleged. It is next contended that there are general allegations and a concocted and false story has been set up by the prosecution whereas the applicant did not commit any offence as alleged. It is also contended that there is material contradiction in the contents of first information report, statements recorded under Sections 161 and 164 Cr.P.C. as also medical evidence, which shows that a false and concocted story has been set up against the applicant. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. The applicant is languishing in jail since 31.7.2021. He undertakes that he will not misuse the liberty, if granted, therefore, he may be released on bail. Learned counsel appearing for the opposite party vehemently opposed the prayer. Having heard submissions of learned counsel of both sides, considering nature of accusation, severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction in support of the charge, reformative theory of punishment, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh v. State of U.P. and another, (2018) 3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail. Let the applicant- Mohd. Arbaj alias Mumtaz Alam involved in Case Crime No. 287 of 2021, under Sections 366, 376-D, 328, 323 IPC, Police Station Kundarki, District Moradabad be released on bail, on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned, with the following conditions: (1) The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, or otherwise during the investigation or trial; (2) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. He shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code; (3) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C.; and (4) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, the trial court shall initiate proceedings against him, in accordance with law under Section 174-A of the Indian Penal Code. The identity, status and residential proof of sureties will be verified by the court concerned and in case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail and send the applicant to prison. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of this bail application and must not be construed to have any reflection on the ultimate merits of the case." On the aforesaid premise, learned counsel for applicant contends that case of present applicant is similar and identical to co-accused Mohd. Arbaj @ Mumtaz Alam. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny him bail. He, therefore, contends that for the facts and reasons mentioned in the order dated 17.12.2021, applicant is also liable to be enlarged on bail. It is lastly submitted that applicant is a man of clean antecedents, inasmuch as he has no criminal history to his credit except the present one. Allegations made in F.I.R. are false and concocted. Applicant is being falsely prosecuted in above mentioned case crime number. Learned counsel for applicant then submits that prosecutrix is major. As per statement of prosecutrix recorded under section 161 And 164 Cr.P.C., she has herself alleged that she is aged about 17 years. However, in the medico legal examination her age has been determined as 18 years. There is no educational certificate to establish the age of the prosecutrix. Therefore, the age of the prosecutrix as determined in medical examination shall prevail. The medical evidence does not support the prosecution story. It is then contended that statements of prosecutrix under section 161/164 Cr.P.C. are inconsistent and contradictory. The statement of prosecutrix under section 164 Cr.P.C.suffers from the vice of exaggeration and embellishment. Applicant. He is in jail since 25.7.2021. As such, he has undergone more than eight months of incarceration. In case applicant is enlarged on bail he shall not misuse the liberty of bail and shall co-operate with the trial. Charge sheet has already been submitted. as such, evidence sought to be relied upon by the prosecution against applicant stands crystallized. He therefore submits that custodial arrest of applicant is not absolutely necessary during course of trial. On the aforesaid premise, it is urged that applicant is liable to be enlarged on bail. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is a charge-sheeted accused. As such, applicant is not entitled to any indulgence by this Court. However, learned A.G.A. could not dispute the facts as noted above. Having heard learned counsel for applicant, learned A.G.A. for State, upon perusal of material brought on record as well as the complicity of applicant and accusation made but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed. Let the applicant Salman Alias Chotey, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:- (i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW. (ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW. (v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 28.3.2022 Arshad Digitally signed by ARSHAD MAHMOOD Date: 2022.03.31 17:48:53 IST Reason: Location: High Court of Judicature at Allahabad